Equity (επιεικεια) - Aristotle's view
We've all heard the term "equity" and we all conclude that it connotes fairness, equality, leniency and the "right thing being ultimately being done".
In his Nicomachean Ethics, the Greek philosopher Aristotle identified "equity" as a genus of law which has the specific purpose of correcting legal injustice, that is the type of injustice which occurs when laws which are drafted purposefully are applied rigidly and give rise to essentially unjust results - a paradox in itself.
And yet all too often situations arise where this could very well happen.
Equity therefore comes to the rescue of the person suffering that type of injustice. Equity has the ability to soften the application of the law, and ensure that the end result is not an unjust one, but an equitable one.
In our common law system Equity is always - every time and without exception - superior to the law. Whenever there is a conflict between Equity and Law, Equity must always win. Apart from being an enshrined principle, it also has the support of statute in the form of section 29(1) of the Supreme Court Act 1986 (Vic) which states that: "Subject to the provisions of this or any other Act, every court exercising jurisdiction in Victoria in any civil proceeding must continue to administer law and equity on the basis that, if there is a conflict or variance between the rules of equity and the rules of the common law concerning the same matter, the rules of equity prevail."
Of course this gives rise to another paradox - how can something born of law act in a way to correct legal justice itself?
The answer according to Aristotle was simple. He did not identify equity as a virtue all its own, but that people with the virtue of justice ought also to have the virtue of equity. As such, true justice must incorporate equity to ensure justice always results.
As such, justice simply cannot be done without equity.
